Article 50 TEU, together with Article 218 TFEU, set out the main procedures to follow. These follow closely the other EU procedures: the Commission will present a mandate, form a team, report to the Council, and the Council and the European Parliament will accept. The mandate proposal is likely to be tabled by the Commission is April. Meanwhile, the European Council has published draft negotiation guidelines.
From the above, three things stand out: First is the question what is really the power balance between the Commission and the Council, second, how does the European Council fit into this, and third, how the Parliament seems to have quite a weak role as it will be only engaged at the very last stage, when the agreement is to be accepted.
Balance of power between Commission and Council
The Commission will start the procedure by asking for a negotiation mandate. This mandate will provide the scope of the negotiations: what topics are going to be under the negotiation, whether there will be first a negotiating mandate for exit and later for a new relationship, and who will be in the negotiation team. This mandate will need to be adopted by the Council and it will bind the EU negotiating team.
Even though the Commission will be acting under the watchful eye of the Council throughout the negotiations, as it will need to report to it periodically and take instructions from it, it has certain advantages over the Council.
One is internal cohesion: the exit deal, or any change in the negotiations, will need to be approved by the qualified majority of member states. One member state cannot rock the boat.
On an agreement on the new relationship, it depends on how ambitious the agreement will be. If the agreement will be a simple free trade agreement on goods, then the EU can ratify the agreement on behalf of the member states, with the Council adopting the agreement by qualified majority.
However, if the agreement goes any deeper, it will be subject to unanimity requirement or it may be that it will need to be ratified at the national level. As the latter is likely, one member state, or even one national parliament, can rock the boat. This is one reason why a good transitional framework will be needed.
Another advantage for the Commission is that it has also a wealth of expertise in its disposal. Michel Barnier and his team can reach out to the different Directorates General for specialist knowledge, whereas it is unlikely that every member state will have a big team dedicated for Brexit.
The position of the European Council
The European Council, institutionally a different body from the Council of Ministers, and its President, Donald Tusk, have been in the limelight after publishing draft negotiation guidelines. These are not the same thing as the mandate above, and will not be binding: the European Council does not have the power to propose or adopt the mandate, but can provide impetus and high level instructions as to what it would like the Union to do.
The European Council is important as it consists of representatives at the highest national political level: the Heads of State and Government. Furthermore, it adopts its positions by unanimity.
This means that when the European Council adopts its guidelines for the negotiations on 29 April, these will provide clear instructions for the Commission and the Council to proceed, having been endorsed unanimously by the highest national political leaders. Consequently, any future statements, or important omissions, by the European Council will also have a special meaning.
Hidden strengths of the European Parliament
Although the European Parliament has officially role only at the end of the process, as it has the power to accept or reject the final agreements, it has also other tools in its disposal to influence the result. The Parliament will be the only institution discussing the negotiations in public.
In fact, it has already started the work though the AFCO Committee and setting up a European Parliament negotiating team, which is led by Guy Verhoefstad. It can, and intends to, exert public pressure on the negotiating parties. It may be argued that it has already done so. The Parliament has been very vocal on the need to reach an agreement on the EU and UK citizens’ rights. This has been now fully recognised by the European Council draft conclusions.
Furthermore, measure of the early and active role of the Parliament can be found in the Motion for a Resolution published on 29 March. This resolution welcomes the appointment of Barnier, whilst reminding the other institutions that the “full involvement of the European Parliament is a necessary precondition for it to give its consent to any agreement reached between the European Union and the United Kingdom”.
During the negotiations Parliament can also ensure that it has the Commission’s ear. It has the power to ask questions from the Commission and request that the Commission will take part in the Parliament’s hearings.
The Commission has, in fact, already pledged to act transparently throughout the negotiations. This is likely to mean that negotiation texts will be published, questions answered, and more regular updates are given to both the Council and the Parliament than is normally the case. This may seem an unusual step for negotiations such as these, and presumably reflects both the intense public interest in this case, as well as the criticism previously borne by the Commission during the CETA/ TTIP negotiations.
All this, in turn, means that the European Parliament may prove an influential platform for other organisations needing further information, and trying feed into the negotiations.
This article has been written for the Law Society of Scotland’s Journal and will appear in 17 April edition.